Monday, December 31, 2007

Fourth Lays Out Post-Gall Procedures, Upholds Downward Variance

US v. Pauley: Pauley pleaded guilty to one count of possessing child pornography. The unusual facts of the case involve Pauley, a middle school (later high school) teacher, being approached by a female student who asked whether he was interested in paying her for nude pictures she took of herself. Pauley agreed and pictures were exchanged during successive school years. When both Pauley and the student moved to high school, she proposed to take pictures of herself and another female student. The pictures were taken, but the other student informed authorities, who recovered the pictures.

At sentencing, the district court calculated Pauley's advisory Guideline range to be 78 to 97 months in prison. After hearing arguments from the parties, the district court imposed a sentence of 42 months in prison, for numerous reasons:
(1) in buying the nude photographs each time, Pauley initially was approached by the victim with such a proposal; (2) fewer than two dozen pornographic photographs were taken with the victim’s Polaroid camera; (3) the victim’s face did not appear in any of the photographs; (4) Pauley displayed deep remorse; (5) besides the criminal conduct at issue, Pauley was a model citizen and a good father and teacher; (6) as a result of his conviction, Pauley lost his teaching certificate and his state pension; (7) Pauley agreed to a lifetime of supervised release; (8) no other child pornography was found in Pauley’s house; and (9) the counseling Pauley would receive during incarceration would rehabilitate him, allow him to lead a productive life upon release, and make further crimes by Pauley extremely unlikely.
The Government appealled, arguing that Pauley's sentence was unreasonable. The Fourth Circuit unanimously rejected that argument. In doing so, it set forth the procedure to be used in a post-Gall world:
Recently, the Supreme Court decided two cases which together explain in detail the mechanics of Booker’s remedial holding. See Gall v. United States, No. 06-7949, 2007 WL 4292116 (U.S. December 10, 2007); Kimbrough v. United States, No. 06-6330, 2007 WL 4292040 (U.S. December 10, 2007). In Gall, the Court instructed that the sentencing court should first calculate the applicable Guidelines range. 2007 WL 4292116, at *7. This starting point furthers Congress’ desire for efficient administration and nationwide consistency in sentencing. Id. After calculating the Guidelines range, the sentencing court must give both the government and the defendant 'an opportunity to argue for whatever sentence they deem appropriate.' Gall,
2007 WL 4292116, at *7. The sentencing court should then consider all of the §3553(a) factors to determine whether they support the sentence requested by either party. Id.; see also Kimbrough, 2007 WL 4292040, at *10 (noting that, while § 3553(a) requires the sentencing
court to give due consideration to the Guidelines, Booker allows the sentencing court to fashion the sentence in light of other statutory considerations). In so doing, the sentencing court may not presume that the Guidelines range is reasonable. Gall, 2007 WL 4292116, at *7. In the event the sentencing court decides to impose a variance sentence, i.e., one outside of the recommended Guidelines range, the sentencing court 'must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.' Id. As noted by the Gall Court, it is an 'uncontroversial' proposition that a 'major departure should be supported by a more significant justification than a minor one.' Id.
Reviewing Pauley's sentence, the court held that the district court's variance "is reasonable and premised on the factors set forth in §3553(a)."

Congrats to CJA counsel Ben Baily and Deirdre Purdy on the win!

Friday, December 21, 2007

"Custody" Doesn't Turn on Interogator's Assurance That Defendant Is Not In Custody

US v. Colonna: Colonna was convicted by a jury of two counts related to child pornography. The investigation of Colonna began with an FBI agent infiltrating an online file-sharing service dedicated to child porn, which led to the execution of a search warrant at Colonna's home (where he lived with his parents and sister). It took 23 agents to execute the warrant on this vicious criminal. While the search was ongoing, Colonna was interviewed by two of the agents and made inculpatory statements. At no time was he provided Miranda warnings. Colonna moved to suppress his statements, at which time the district court found:
that Colonna was awakened by armed agents and guarded by agents until the search and interview concluded. The home was inundated with approximately 24 officers who gave Colonna and his family members instructions; that is, they told them where to sit and restricted their access to the home. Colonna did not voluntarily request to speak with Agent Kahn. Instead, Agent Kahn requested that Colonna accompany him to a FBI vehicle to answer questions, wherein a full-fledged interrogation took place. Agent Kahn questioned Colonna for almost three hours, albeit with breaks. But, even during these breaks, Colonna was constantly guarded. Although Colonna was not placed under formal arrest, he was told twice that lying to a federal agent was a federal offense. And, at no time was he given Miranda warnings or informed that he was free to leave.
Nonetheless, the district denied the suppression motion, holding that Colonna was not in custody because (1) the agent interviewing him said so and (2) Colonna was not arrested until nearly two months after the search.

On appeal, the Fourth Circuit reversed. The court held that the district court had put entirely too much weight on the agent's statement to Colonna that he wasn't in custody during the search, noting that such statements are but one part of the totality of the circumstances to be considered in such cases. Due to the lack of Miranda warnings, Colonna's statements should have been suppressed. The failure to do so was not harmless. Therefore, the case was remanded for a new trial.

Wednesday, December 19, 2007

Court Joins Majority in Tax Loss Calculation Circuit Split

US v. Delfino: The Delfinos (husband and wife) ran several computer consulting businesses. The income generated by those businesses, rather than being taken directly by the Delfinos, was put into several trusts. Neither the Delfinos nor the trusts paid taxes on that income. After an audit (with which they refused to cooperate), the Delfinos were indicted for mail fraud and attempted tax evasion. At trial, they relied on a good faith defense based on the advise of a "trust promoter and self-described tax consultant." The jury rejected that defense and convicted the Delfinos on all counts. At sentencing, the tax loss was based on the audit with which the Delfinos did not cooperate and did not take into account deductions which they would have been entitled to take had they paid their taxes on time.

On appeal, the Fourth Circuit turned back the Delfinos' challenges to both their convictions and sentences. First, the court rejected the argument that the trial court improperly excluded the testimony of other people who relied on the same "trust promoter" as the Delfinos, holding that because there was no evidence that those witnesses received the same advice as the Delfinos it was irrelevant to the question of the Delfinos' subjective beliefs. Second, the court held that there was sufficient evidence to support the convictions.

Finally, as to sentencing, the court held that the amount of tax loss was properly calculated. Specifically, the court held that potential deductions should not have been subtracted from the amount of loss because the Delfinos failed to file tax returns as required and cooperate with the initial audit, during which they could have claimed the deductions. Those deductions were therefore waived. There is a split in the circuits on this issue, with the Fourth Circuit joining the Seventh and Tenth Circuits in the majority (the Second Circuit disagrees).

Monday, December 17, 2007

True Threats Can Extort State University

US v. Bly: Bly was a long-time doctoral student at the University of Virginia. After he was dropped from the program, he began to write letters and Emails to the UVa administration claiming that he had been treated unfairly and that his work had been plagiarized.

In one letter, addressed to more than 40 people, Bly made a series of demands backed by threats of violence, referencing the ability to "end elements of long standing dispute with the twitch of my index finger." A cover sheet included practice targets from a shooting range and screaming all-caps text attesting to Bly's proficiency with high-powered rifles. Bly was charged under 18 USC 876(b) with attempting to extort UVa with threats of violence. Bly pleaded guilty to that offense, but only after the district court denied a motion to dismiss on grounds that the letter was First Amendment protected "hyperbolic" political speech and that UVa was a "person" that could be the target of an attempted extortion.

On appeal, the Fourth Circuit followed the district court and affirmed Bly's conviction. First, the court concluded that the letter contained true threats that were not entitled to First Amendment protection. Second, the court concluded that UVa was a person that could be the target of extortion.

Factual Basis Insufficient to Sustain Guitly Plea

US v. Mastrapa: Mastrapa pleaded guilty to being part of a conspiracy to distribute 500 grams or more of methamphetamine. However, Mastrapa had consistently denied that he had any real part in the conspiracy and was nabbed with the meth while helping two strangers (the other co-conspirators) carry some grocery bags into their hotel room. At the guilty plea hearing, Mastrapa brought this up, but the district court relied on a DEA affidavit submitted by the Government as a factual basis to accept the plea. The same issue arose at sentencing, where Mastrapa's counsel suggested that the guilty plea had been an Alford plea. The district court sentenced Mastrapa to the mandatory minimum 120 months in prison.

On appeal, Mastrapa's counsel initially filed an Anders brief. Noting concerns about the guilty plea, the Fourth Circuit requested briefing on the issue and appointed new counsel. After arguments the court concluded that the district court plainly erred by finding that there was a factual basis to support Mastrapa's guilty plea. The court concluded that Mastrapa essentially denied the mens rea element of the conspiracy charge and that it was not proven by the affidavit on which the district court relied.

Court Addresses Prior Convictions in Travel With Intent Case

US v. Kelly: Kelly was a long-haul trucker who routinely hauled loads between North Carolina and the Midwest. He frequently stopped at a truck stop in Charleston, West Virginia, where he became associated with a prostitute named Carder. Over the course of several visits, Carder alleged that Kelly wanted her to procure a young girl with which he could have sex. Carder took these allegations to the local police, with whom she was familiar from various legal problems. Eventually, when Kelly stopped in Charleston on a haul, Carder took money from him to procure the child, in a transaction that produced an audio recording. Kelly was arrested and charged with interstate travel with intent to have sex with a minor. At trial, the Government introduced evidence that Kelly had been convicted of attempted rape of a 12 year old in 1984. Meanwhile, Kelly was not allowed to impeach Carder with a prior conviction from Florida for passing a worthless check. Kelly was convicted and sentenced to 63 months in prison.

On appeal, the Fourth Circuit upheld Kelly's conviction and sentence. First, the court held that the district court properly admitted Kelly's prior conviction under FRE 414 and that it was not unduly prejudicial under FRE 403. Second, the court held that not allowing Kelly to introduce evidence of Carder's prior conviction, if it was error at all, was harmless given the other myriad ways that Carder was impeached at trial. Third, the court rejected Kelly's argument that the evidence was insufficient to prove that his intent to when he traveled to West Virginia on that particular trip was to have sex with a minor. Finally, the court stepped in line with the rest of the Circuit Courts and held that no actual child victim is necessary to sustain a conviction for interstate travel with intent to have sex with a minor. The court also concluded that Kelly's sentence was reasonable.

Wednesday, December 05, 2007

Plea Agreement Bars Subsequent Prosecutions

US v. Jordan: Jordan and co-defendant Gordon were convicted by a jury of conspiring to commit multiple drug, firearm, and murder offenses arising from the killing of a drug courier (the defendants "forcibly abducted [the victim], took him to another location, and set him on fire."). The conspiracies allegedly took place between 2002 and 2004. Prior to trial, Gordon, moved to dismiss the indictment against him because it was barred under a plea agreement he entered into with the Government in 2002. The district court denied that motion. It also overruled both defendants' objections to the use of hearsay testimony from a deceased co-conspirator during trial.

On appeal, the Fourth Circuit reversed as to Gordon but affirmed Jordan's convictions.

As to Gordon, the court concluded, 2-1, that the 2002 plea agreement barred his prosecution. The agreement was ambiguous as to whether its non-prosecution provision applied only to crimes committed by Gordon at that time or any conduct in which he was engaged. Construing the ambiguity against the Government, the court held that it applied to all conduct, which included the charged conspiracies in the instant case. Therefore, Gordon's convictions were vacated. District Judge Wilson, sitting by designation, would have remanded for further proceedings to determine if extrinsic evidence would show a "mutually agreed upon meaning" to the ambiguous language.

As to Jordan, the statements at issue were made by a co-conspirator who was involved in the murder setup to a friend with whom she lived for a while afterwards. The court held that the statements were not barred under Crawford because they were not testimonial because the co-conspirator would not have reasonably believed her friend would eventually testify about those statements in court. In addition, the court concluded that the statements were admissible as statements against penal interest because they related to the co-conspirator's role in the crime.

Hospital Questioning Not "Custodial"

US v. Jamison: Jamison was driven to the hospital by two friends. When he arrived, he told a police officer hanging around near the front door that he'd been shot. While he was being treated for his wound, Jamison was questioned by that officer regarding how he got shot. The officer had Jamison's hands bagged so they could be tested for evidence of gun shot residue. A detective, who responded to the hospital after word of a shooting had gone out, then questioned Jamison about what happened. Jamison told a different story than he originally told the officer. The detective then examined Jamison's wound and clothing and concluded that they did not match up with Jamison's story. After further questioning, Jamison eventually admitted that he shot himself. He was charged with being a felon in possession of a firearm.

Prior to trial, Jamison sought to suppress his statements at the hospital because he had never been given Miranda warnings while being questioned in police custody. The district court agreed and suppressed the statements. The Government appealed.

On appeal, the Fourth Circuit reversed. The court held that there was no requirement that Jamison be given Miranda warnings because he was never "in custody" of the police. Instead, the restraints on Jamison's liberty that allowed him to be questioned were ones directly related to medical treatment that he sought ("Absent police-impose restraint, there is no custody."). Furthermore, the questioning by police was the type that a reasonable person would expect to occur when he reports that he has been the victim of a violent crime. As for the bagging of the hands, the officer testified that it was a routine procedure done to both potential victims and perpetrators of shootings.